Barton v. Board of Parole

636 November 5, 2025 No. 960

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

MORGAN ALICIA JODEEN BARTON,

Petitioner,

v.

BOARD OF PAROLE AND POST-PRISON

SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A183939

Submitted June 24, 2025; on respondent’s motion to dis-

miss filed May 28, 2025, petitioner’s response filed May 29,

2025, and respondent’s reply filed June 5, 2025.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Stacy M. Du Clos, Deputy Public Defender,

Oregon Public Defense Commission, filed the briefs for

petitioner.

Dan Rayfield, Attorney General, Benjamin Gutman,

Solicitor General, and Megan Mizuta, Assistant Attorney

General, filed the brief for respondent.

Before Tookey, Presiding Judge, Kamins, Judge, and

Jacquot, Judge.

TOOKEY, P. J.

Appeal dismissed as moot.

Nonprecedential Memo Op: 344 Or App 636 (2025) 637

TOOKEY, P. J.

The Board of Parole and Post-Prison Supervision

(the board) denied petitioner’s release after a juvenile hear-

ing under ORS 144.397. Petitioner then sought judicial

review of the board’s order in this court by filing a “Petition

for Parole Review.” See ORS 144.335(1) (providing, in part,

that “[a] person over whom the State Board of Parole and

Post-Prison Supervision exercises its jurisdiction may seek

judicial review of a final order of the board as provided

in this section if * * * [t]he person is adversely affected or

aggrieved by a final order of the board”); see also ORAP 4.10

(“Judicial review of reviewable orders of the Board of Parole

and Post-Prison Supervision, which shall be entitled ‘Parole

Review,’ shall be in accordance with the rules for judicial

review of orders of state agencies in contested cases and

shall show the Board of Parole and Post-Prison Supervision

as respondent.”).

In particular, petitioner contends that “the board’s

finding that petitioner’s parole plan was not adequate is not

supported by substantial evidence and reason” and that “the

board’s finding regarding the psychologist’s qualifications to

conduct evaluations for the purposes of maturity and reha-

bilitation hearings was not supported by substantial evi-

dence.” See Jacobs v. Board of Parole, 342 Or App 41, 49, ___

P3d ___ (2025) (“We review the board’s order for substantial

evidence in the record. ORS 183.482(8). * * * The substantial-

evidence standard requires that substantial evidence sup-

port the board’s factual findings and that substantial rea-

son support its conclusions[.]” (Internal quotation marks

omitted.)). Petitioner also contends that “the board exceeded

its rulemaking authority when it [adopted] OAR 255-033-

0030(5)(d) and OAR 255-033-0030(5)(k).” See ORS 183.400(4)

(providing, in part, that “[t]he court shall declare the rule

invalid only if it finds that the rule * * * [e]xceeds the statu-

tory authority of the agency”).

We do not reach the merits of petitioner’s assertions,

however, because we dismiss petitioner’s appeal as moot.

After briefing in this case was complete, the board

filed a motion to dismiss this case as moot because petitioner

638 Barton v. Board of Parole

has been released from imprisonment, began a 140-month

term of post-prison supervision, and is what the board’s

briefing refers to as “a guideline offender” whose release from

imprisonment determines when her post-prison supervision

begins and ends. See Dept. of Human Services v. T. J. N., 371

Or 650, 656, 540 P3d 540 (2023) (explaining that, “generally

speaking, a case becomes moot when a court’s decision will

no longer have a practical effect on the rights of the parties”

(internal quotation marks and brackets omitted)).

In response, petitioner identified three purported

“collateral consequences”—i.e. “probable adverse conse-

quences”—of the challenged order that, in petitioner’s view,

prevent this case from being moot. See State v. Hauskins,

251 Or App 34, 36, 281 P3d 669 (2012) (“A collateral conse-

quence for the purposes of mootness is a probable adverse

consequence to the [non-moving party] as a result of the

challenged action.”). Those collateral consequences are that

(1) “the board’s order may impact petitioner’s supervision

conditions”; (2) the board’s order “increases the social stigma

of petitioner’s convictions and incarceration and may reduce

her opportunities for treatment, housing, and employment”;

and (3) “[i]f petitioner chooses to file a civil suit based on her

continued incarceration after the hearing, a decision in this

case may have a practical effect on those proceedings.”

Having considered the collateral consequences iden-

tified by petitioner, and the board’s arguments in response,

we agree with the board that the collateral consequences

identified by petitioner are too speculative for petitioner’s

release to post-prison supervision not to render her argu-

ments moot. That is, the board has met its burden to per-

suade us that, in this case, the board’s order will not have

practical effects on petitioner’s rights. Dept. of Human Servs.

v. A. B., 362 Or 412, 430, 412 P3d 1169 (2018) (dismissing

appeal where “the department has met its burden to per-

suade us that, in this case, the jurisdictional judgment will

not have practical effects on mother’s rights”).

In particular, and as the board points out, peti-

tioner has not pointed to any condition of post-prison super-

vision that was affected by the board’s order; petitioner has

not identified any current litigation in which a decision on

Nonprecedential Memo Op: 344 Or App 636 (2025) 639

the board’s order will have any effect; and we do not under-

stand the board’s order to have increased the social stigma

which flowed from the fact of petitioner’s convictions and

attendant sentences for one count of first-degree unlawful

sexual penetration, ORS 163.411 (Count 1), two counts of

first-degree sodomy, ORS 163.405 (Counts 2, 8), two counts

of first-degree sexual abuse, ORS 163.427 (Counts 3 and 7),

two counts of using a child in a display of sexually explicit

conduct, ORS 163.670 (Counts 4 and 5), and one count of

first-degree rape, ORS 163.375 (Count 6).

Petitioner also contends that “even if this court

determines that some aspects of petitioner’s claims are

moot, she maintains standing to challenge the validity of

the board’s rules [under ORS 183.400] and those particu-

lar claims are not moot.” That is, petitioner contends that,

“even if this court may not reach the rules’ application to

petitioner personally, this court should nonetheless conclude

that she has standing to raise a facial challenge to the rules,

which she has done.”

ORS 183.400 provides, in pertinent part:

“(1) The validity of any rule may be determined upon a

petition by any person to the Court of Appeals in the man-

ner provided for review of orders in contested cases. The

court shall have jurisdiction to review the validity of the

rule whether or not the petitioner has first requested the

agency to pass upon the validity of the rule in question, but

not when the petitioner is a party to an order or a contested

case in which the validity of the rule may be determined by

a court.

“(2) The validity of any applicable rule may also be

determined by a court, upon review of an order in any man-

ner provided by law or pursuant to ORS 183.480 or upon

enforcement of such rule or order in the manner provided

by law.”

We are unpersuaded by petitioner’s argument.

Regarding ORS 183.400(1), the difficulty with petitioner’s

position is that petitioner did not petition this court to deter-

mine the validity of a rule under ORS 183.400(1); rather,

as noted, petitioner sought judicial review in this court of

a final order of the board denying petitioner’s release. See

640 Barton v. Board of Parole

Pacific Northwest Bell Telephone Co. v. Eachus, 107 Or App

539, 541-42, 813 P2d 46 (1991) (rejecting the argument that

the court could consider a challenge that was not brought

under ORS 183.400(1) “as if it were a petition under ORS

183.400(1)”). Nor does ORS 183.400(2) assist petitioner; her

challenge to the board’s order itself is moot, so we are not

“review[ing the order] * * * in any manner provided by law.”1

If petitioner wishes to challenge validity of OAR

255-033-0030(5)(d) and OAR 255-033-0030(5)(k), she can

do so by filing a petition with this court pursuant to ORS

183.400(1).

Appeal dismissed as moot.

1

Petitioner also contends, pointing to ORS 14.175, that “the board order is

one that is capable of repetition yet likely to evade review, and this court should

exercise its discretion to [review] it.” We decline to review this case on the basis of

ORS 14.175; we are not persuaded that the challenges petitioner raises are likely

to evade judicial review. See, e.g., Jacobs, 342 Or App at 42 (considering whether

OAR 255-033-0030(5)(k) was within the board’s authority).